Friday, July 30, 2010

In Crown v. Chase Home Finance (5D09-1225), the Fifth District reversed the trial court's entry of a summary final judgment entered after the denial of the appellant/defendant's motion to amend their answer. Seven months after answering the complaint, the appellants retained counsel and:

the Crowns' newly retained counsel served a motion to amend on the Crowns' behalf. A proposed answer with affirmative defenses was attached to the motion. Chase's previously filed motion for summary judgment did not address several of the affirmative defenses raised in the Crowns' proposed answer. On the twenty-first day after service of the motion for summary judgment, the trial court held a hearing, denied the Crowns' motion to amend, and granted Chase's motion for summary final judgment.

In the instant case, Crowns had not abused the privilege to amend and there was no showing that amendment would be futile or that Chase would suffer prejudice. Furthermore, denial of the motion to amend would preclude the case from being resolved on its merits.

In 2008, the Florida Legislature amended section 626.854 of the Florida Statutes to include new regulations on public adjusters doing business in Florida. Among these regulations were section 626.854(6), limiting the timing of a public adjuster’s initial contact with a potential client, and section 626.854(11)(b)(2), capping the maximum fee that may be charged by a public adjuster.

The appellees filed a lawsuit challenging the constitutionality of the statutes and seeking an injunction against enforcement of the statutes. Alex Sink in her capacity as Chief Financial Officer of the State of Florida, the Florida Department of Financial Services (the “Department”), and the State of Florida filed a motion to dismiss and/or to transfer venue to Leon County. The Third District stated:

In civil actions 'against the state or one of its agencies, the Florida common law home venue privilege provides that venue is proper in the county where the agency maintains its principal headquarters.' The home venue privilege, however, is not without exception....The exception argued by the Adjusters, known as the “sword-wielder” doctrine, applies when a “plaintiff seeks judicial protection from a real or imminent danger of invasion of the plaintiff’s constitutional rights by the state agency.”

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Aside from the general statement that “[a]ll of the actions giving rise to this cause of actions [sic] occurred in Miami-Dade County,” the Adjusters’ complaint is devoid of specific allegations tying the Department’s investigations to the challenged statutory provisions.

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The documents filed by the Adjusters show that the Department sent correspondence to Ameriloss and Premier advising them that investigations had been opened concerning their insurance-related activities in Florida...The Adjusters, however, also filed affidavits stating that Gene Cashier (“Cashier”), an agent of the Department, traveled to Miami-Dade County, visited and interviewed East Coast’s clients, interviewed a contractor used by one of the clients, and advised the clients that East Coast was being investigated on suspicion of fraudulent or excessive claims.

The state, however, was investigating allegations of fraud not related to the challenged sections. Therefore, constitutional rights were not at risk by statutes which were not at issue in the investigation.

Based upon the plain language of this section, fraudulent and excessive claims, such as those purportedly being investigated by Cashier, are outside of the scope of section 626.854(11)(b)(2), and the Adjusters’ attempt to attack and forestall these investigations by challenging the constitutionality of sections 626.854(6) and 626.854(11)(b)(2) is misplaced. The Adjusters argue that the two statutory sections are unconstitutional, and as such, their affirmative enforcement is a violation of the Adjuster’s constitutional rights sufficient to merit application of the sword-wielder doctrine. This argument fails because there is nothing in the complaint or in the evidence presented in response to the motion demonstrating that the Department’s purported investigation of the Adjusters results from or is related to the enforcement of the two challenged sections.

Finally, the court stated:

As the Adjusters were unable to sufficiently establish the application of the sword-wielder doctrine, the home venue privilege should have been applied by the trial court....Based on the foregoing, we reverse the trial court’s order and remand with instructions that venue be transferred to Leon County.

In Siforov v. HSBC Bank, USA (3D08-2895), the Third District issued a one word affirmance. However, the court then added a sentence discharging an order to show cause but stating that the appellant's attorney "is admonished to provide complete and accurate record citations and otherwise comply with the Florida Rules of Appellate Procedure in any future filings with this Court."

The First District's decision being reviewed can be found HERE. The petitioner's initial brief on jurisdiction can be viewed HERE and the respondent's jurisdictional brief can be viewed HERE. Justice Quince dissented from the Court's decision to accept jurisdiction.

The Second District's decision being reviewed can be found HERE. The petitioner's initial brief on jurisdiction can be viewed HERE and the respondent's jurisdictional brief can be viewed HERE. Justice Polston and Justice Labarga dissented to the Court's decision to accept jurisdiction. Chief Justice Canady was recused.

The First District's decision under review can be found HERE. The peitioner's brief on jurisdiction can be vieed HERE and the respondent's brief on jurisdiction can be found HERE. Chief Justice Canady dissented from the Court's decision to accept jursdiction.

Update (July 28, 2010):

Crawford v. Barker (SC09-1969):
The court previously accepted jurisdiction on April 16, 2010 but had postponed deciding whether the case would be considered with oral argument. The court has now decided that the case will be considered with oral argument. The peitioner's brief on jurisdiction can be vieed HERE and the respondent's brief on jurisdiction can be found HERE. The initial brief can be viewed HERE, the answer brief HERE and the reply brief HERE. The Third District's decision being reviewed can be found HERE.

After obtaining a judgment against Fireline, Works R Us had writs of garnishment issued against FIGA and GrayRobinson. Works R Us argued that money in GrayRobinson’s trust account belonged to FIGA and that it was going to be paid to Fireline. FIGA argued that it did not owe money to Fireline, however, the trial court disagreed and entered a judgment against both FIGA and GrayRobinson requiring that the money in the GrayRobinson trust account be turned over to Works R Us.

After a recitation of the underlying facts, the court noted that “Works R Us has no greater right than Fireline has to recover funds from FIGA or GrayRobinson.” the court stated:

The funds held by GrayRobinson have been paid in accordance with a court order in the Del Mar litigation with specific directions. Fireline and various creditors of Fireline, as well as Del Mar and FIGA itself, were allowed thirty days to file claims against those funds. Any claims filed beyond that time were deemed barred and waived. Any unclaimed funds would be returned to Del Mar. The record on summary judgment in this proceeding does not reveal whether Fireline filed a claim to the deposited funds. If it did not, then according to the judgment, its claim to them would be barred. In that case, owing no debt to Fireline, GrayRobinson would owe no monies to Works R Us.

The court referenced several orders from an unrelated litigation which can be viewed at the links below:

You can read a press release relating to the named appellee Fireline issued by the United States Securities & Exchange Commission HERE and a related complaint filed by the SEC HERE. News articles can be found at the following links:

Wednesday, July 14, 2010

In CJM Financing, Inc. v. Castillo Grand, LLC (4D08-4204), the Fourth District affirmed the trial court's entry of a summary final judgment in favor of the defendant because the plaintiff failed "to properly plead any legal theory that would have avoided the release." The court described the facts as follows:

CJM filed a breach of contract action for the remaining $50,000. Castillo Grand filed an answer and affirmative defenses; the fourth affirmative defense pleaded the release as a bar to the breach of contract claim. CJM did not file a reply.

The court stated that "On appeal, CJM contends that the release should not be enforced because of a 'mutual mistake'.” However:

By its failure to file a reply, CJM did not properly inject any legal theory involving a mutual mistake into the case. Florida Rule of Civil Procedure 1.100(a) provides that if an answer “contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance.” To say that a “mutual mistake” has occurred is a statement without legal significance. However, a mutual mistake may be a ground for reformation or rescission of a contract. To have the release reformed or rescinded because of a mutual mistake, CJM was required to properly plead such an avoidance in the reply. See Aravena v. Miami-Dade County, 928 So. 2d 1163, 1168 n.1 (Fla. 2006); Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447, 449 (Fla. 1986); N. Am. Philips Corp. v. Boles, 405 So. 2d 202 (Fla. 4th DCA 1981).

During the deposition of Sky’s manager, Sky’s Chief Financial Officer passed the deponent a note that read, “Don’t worry about pleasing him. Just say no.” The note was brought to the attention of the magistrate presiding over the deposition; she forbade any further notes.

At trial, the following occurred:

At trial, Sky’s CFO was being questioned about whether Sky received a key document. During a sidebar, while the CFO was still on the stand, Sky’s sole shareholder sent the CFO the following two text messages regarding receipt of the document.

• 10:22:30 a.m.: “We maybe got this document after September 7th when the bank discovered the problem.”

• 10:23:45 a.m.: “We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years, and know every corner.”

The trial court discovered the text messages and declared a mistrial. The court then granted a motion to enter an order dismissing the case. The Third District affirmed and held "The plaintiff’s misconduct was certainly a 'blatant showing of fraud, pretense, collusion or other similar wrongdoing'....There was ample evidence for the trial court to conclude that just such an unconscionable scheme was underway here. This is not a case where the dismissal was unreasonably harsh.

The issue on this appeal is whether a concededly authentic document, purporting to be a transcription by an unidentified employee of the Federal Bureau of Investigation (FBI), of a summary dictated by an unidentified representative of the FBI, of an interview conducted either by that individual or another, is admissible in evidence under the public records exception to the hearsay rule codified in section 90.803(8) of the Florida Statutes (2008). In the balance lies the validity of an adverse summary final judgment suffered by Appellant, the plaintiff in a defamation action filed by him against his former employer, the Wackenhut Corporation, for allegedly falsely maligning him to his prospective employer, the FBI. The trial court held this dispositive piece of evidence was inadmissible. We affirm the decision of the trial court.

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The transcription on which Arce relies to create an issue of fact is, in fact, an inadmissible hearsay statement unless an exception applies....The only exception argued by Arce is the public records exception codified in section 90.803(8)...“Under this provision, two types of public records and reports are admissible into evidence: (1) records setting forth ‘the activities of the office or agency’; and (2) records of a public office or agency which set forth ‘matters observed pursuant to a duty imposed by law as to which matters there was a duty to report.’”....“In adopting this exception,” our High Court has explained, “Florida specifically excluded a third type of record that is admissible under the corresponding federal rule: that is, ‘a record setting forth factual findings resulting from an investigation made pursuant to an authority granted by law.’”

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Arce argues, in the alternative, that summary judgment was entered prematurely because he was not given sufficient time to obtain a certificate of authenticity for the disputed document pursuant to section 90.902 of the Florida Evidence Code....Arce again errs, first by making the common legal error of conflating authenticity of a document with admissibility, see Ehrhardt, at § 902.1 (“Even after a document is authenticated, it will not be admitted if another exclusionary rule is applicable.”), and second, in his belief that by the FBI inserting some requisite words, the document will become admissible under the public records exception to the hearsay rule.

Notably, the Court ended the majority opinion by stating:

We express some degree of sympathy for Arce. He might have been legally maligned by his former employer to the FBI. That also might have been the reason his conditional offer of employment was withdrawn. The FBI says it receives so many requests for information each year that it cannot be bothered to produce a witness at some convenient time to either assist one of the citizens it serves, or dispel his belief concerning why he did not get the job. Absent a witness, Arce’s case is lost. As an agent of the sovereign, the FBI has every right to behave in such a way as to deliver this result. However, it strikes us that this action is uncharacteristic of the “Government of the People, by the People and For the People,” famously envisioned by Abraham Lincoln in his Gettysburg address over 140 years ago.

(emphasis added). Judge Cortinas wrote a ten page dissent that began "Tony Arce never had a chance. Not versus The Wackenhut Corporation. Not against the Federal Bureau of Investigation. Not even in court." The dissent later stated "Following the exclusion of the evidence that essentially formed the basis for Arce’s allegations, the trial court entered summary judgment. The railroading of Tony Arce’s case was now complete."

The plaintiff filed a complaint against two defendants; one defendant was the employee of the other. The complaint alleged that the employee had made defamatory statements and the employer was vicariously liable. The employee admitted to making the statement.

The defendants served a joint proposal for settlement, pursuant to section 768.79, Florida Statutes and Florida Rule of Civil Procedure 1.442. The proposal offered the plaintiff $20,000 in exchange for the dismissal with prejudice of both defendants. It also required, among other things, that “[t]he writing evidencing acceptance of this proposal must include the explicit acknowledgement by the plaintiff that by making this proposal, defendants are not admitting that they have said or done anything improper referable to the plaintiff, and that the defendants are attempting to purchase their peace from this plaintiff.” The plaintiff rejected the proposal, but ultimately settled with the employee.

The trial court found the proposal to be ambiguous due to the language "that the defendants are attempting to purchase their peace from this plaintiff." However, the Fourth District disagreed. The court stated:

Rather than be ambiguous, the defendants specifically directed the language to be contained within the written acceptance. Reading the paragraph as a whole, the last phrase merely explains why the defendants were willing to pay $20,000....“Ambiguity is defined as ‘the condition of admitting more than one meaning.’”...Here, the plaintiff has not suggested a second meaning to the allegedly ambiguous phrase.

Bornstein obtained and served a writ of garnishment on Bank of America, commanding the bank to serve an answer on Bornstein’s counsel regarding whether the bank was indebted to the defendants. The return of service stated that the process server served the writ of garnishment at a Bank of America branch in West Palm Beach o n “Felicia Assaroupe as Teller,” who said she was authorized to accept on behalf of the person to whom the process was directed.

Bank of America moved to quash service of process for failure to comply with sections 48.081 and 655.0201, Florida Statutes (2009). Neither of the statutes permits service of process on a national association through a branch employee.

With regard to the legal analysis, the court stated:

The standard of review of a non-final order that determines the jurisdiction of a person is de novo...Statutes governing service of process should be strictly construed, and valid service on a corporation may be effected only by complying with such statutes...Absent strict compliance, the court lacks personal jurisdiction over the corporation.

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The object of section 48.081 is to have service made upon someone who is held responsible by the corporation, “and it contemplates that service shall be made, whenever possible, upon the more responsible officers before resorting to service upon one of the inferior officers or agents of the corporation.”...“To obtain personal jurisdiction over a corporate defendant, a return of process showing service on an inferior officer of a corporation must show that all superior officers designated in the statute were absent when service was attempted.”

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We conclude that the trial court erred in denying the motion to quash because service was improper in that it failed to comply with the applicable statutes and case law. Neither the original nor the amended return of service showed the absence of the statutorily prescribed superior classes of persons who could have been served. The original return of service made no mention of the absence of any such persons. The amended return of service noted that an officer was present in the bank, but the process server served a bank teller, rather than the officer. The bank teller did not meet the definition of a business agent.

Jury Instructions

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